As we discussed in the last post, the Trump Court found that the president was entitled to what it called “absolute immunity” from criminal prosecution for his “core” official acts. Although this result resembles the absolute civil immunity granted by Fitzgerald for the president’s acts within the outer perimeter of his official responsibilities, we saw that it is not based on either the precedential authority of Fitzgerald or the reasoning of that case.
However, with respect to the president’s noncore official acts, Trump follows the balancing approach of Fitzgerald, though it reaches a possibly different result. The Court concludes that the president is entitled to at least presumptive immunity for his noncore official acts, but it leaves open the possibility that he might be granted absolute immunity for these acts. On the one hand, it explains that “[t]he danger [of criminal prosecution] is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” 603 U.S. at __ (quoting Fitzgerald, 457 U.S. at 745). On the other hand, the Court acknowledges that there is a greater public interest in enforcement of criminal law, and in ensuring the president’s compliance with such law, than in private lawsuits. See 603 U.S. at __ (“The President, charged with enforcing federal criminal laws, is not above them.”). The Court therefore suggests, but does not decide, that the president’s noncore official acts should receive only presumptive, rather than absolute, immunity from criminal prosecution.
The Court’s view that Fitzgerald’s balancing test may require a different outcome in criminal cases is plausible enough, particularly given that the test amounts to little more than aggregating each justice’s subjective assessment of the competing policy interests. However, the Court’s explanation as to why it does not decide the question is, as they say, vacuum argumentum. (Ok, nobody says this, but it is ChatGPT’s Latin approximation of “bullshit”). The Court points to the need for further factual development in the lower courts, but this relates solely to the need to categorize the acts charged by the indictment as official or unofficial. This does not explain why the Court was unable to decide the legal question of how much protection should be extended to noncore official acts.
We do not need to wait 40 years for the internal correspondence of the Trump Court to understand what is going on here. Just as the Fitzgerald Court was able to cobble together a majority by sidestepping what would happen if Congress imposed civil liability on the president, so the Trump Court punted on the issue of immunity for noncore official acts, presumably because some justices in the majority wanted absolute immunity and some only presumptive immunity. As Professor Whittington observes, the decision “bears all the hallmarks of an uneasy negotiation and compromise among the Justices in the majority.” Keith E. Whittington, Presidential Immunity, 2023-24 Cato Sup. Ct. Rev. 283, 284 (2024). The only difference is that the Trump Court failed to decide an issue presented by the case before it.
While leaving open the question of what level of protection would be extended to noncore official acts, the Trump Court “suggested an extremely broad understanding of what falls within the outer perimeter of the President’s office” for purposes of the immunity analysis. Whittington, 2023-24 Cato Sup. Ct. Rev. at 299. Justice Sotomayor’s dissent similarly noted that “[i]f the majority’s sweeping conception of ‘official acts’ has any real limits, the majority is unwilling to reveal them in today’s decision.” Trump, 603 U.S. at __, slip op. at 28 (Sotomayor, J., dissenting).
In contrast to Fitzgerald, which involved a relatively run of the mill complaint by a government whistleblower that he was dismissed in retaliation for congressional testimony that was embarrassing to the Air Force, Trump concerned an effort by the president to remain in office by overturning the results of the 2020 election. Setting aside the question whether Trump genuinely believed that the elections was “stolen” by his opponent, it is difficult to see how this effort could be characterized as anything other than an attempt to advance Trump’s personal and political interests. The Court nonetheless found that many of Trump’s acts could be characterized as official simply on the ground that “the President’s duty to ‘take Care that the Laws be faithfully executed’ plainly encompasses enforcement of federal election laws passed by Congress.” Trump, 603 U.S. at __, slip op. at 26. Thus, for example, it suggested that his speech on the Ellipse, in which he encouraged protestors to march to the Capitol to demand that Congress refuse to certify the electoral votes of his opponent, might be official because “the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election.” Trump, 603 U.S. at __, slip op. at 26-27.
Having thus “blurred the distinction between the President’s legal and political functions,” as Whittington rather mildly puts it, the Court remanded the case with little guidance to the lower courts as to how to untangle the mess that it had made.
The majority did not stop there, however. It also held that prosecutors are forbidden from even introducing evidence of official conduct for which the president cannot be prosecuted. This too goes well beyond the holding of Fitzgerald. Imagine, for example, that Fitzgerald had sued Nixon for defaming him during a press interview after Nixon had left office. Nothing in either the reasoning or holding of the Fitzgerald decision suggests that he would be prohibited from introducing evidence of Nixon’s official conduct to show that Nixon was knowingly lying when he claimed that Fitzgerald was fired for incompetence.
The Trump decision means that even if a (former) president is charged with a clearly “unofficial” crime, prosecution may be more complicated than it otherwise would. In the New York state prosecution of Trump for campaign finance-related crimes, for example, his lawyers argued after the Supreme Court’s decision that the prosecution should not have been allowed to introduce evidence of Trump’s conversations with a White House communications official regarding the criminal activity, even though the crime itself largely occurred before Trump became president and could not plausibly be construed as official in nature.
Collectively, the rulings and language of the Trump opinion have enormous implications for Congress and the extent to which the president and the executive branch remain accountable to the law. We will turn to those in our next post.